dedicated to individual liberties and the restraint of governments that craves power.
FEDERAL JUDGE RULES THAT THE CONSTITUTION DOES NOT PROTECT A PERSON’S PRIVACY IN THEIR OWN BATHROOM
FEDERAL JUDGE FLUSHES THE CONSTITUTIONAL PROTECTION OF DISABLED MAN AGAINST WARRANTLESS INVASION OF HIS PRIVACY IN HIS OWN BATHROOM
FEDERAL JUDGE REJECTS HISTORICAL LIMITS OPENING THE DOOR TO POLICE OFFICERS IN YOUR BATHROOM
A GREAT DANGER IS THE QUITE BUT INSIDIOUS EROSION OF FREEDOM BY FEDERAL JUDGES WHO INCREASE THE GOVERNMENTS REACH INTO YOUR HOME – ONCE THOUGHT YOUR CASTLE – JUDGE HENRY HUDSON’S RECENT OPINION PUTS OFFICERS IN YOUR BATHROOM AND DISPELLS THE PRIVACY OF THE THRONE ROOM
A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man's castle and at its core the throne room – Judge Henry Hudson apparently disagrees.
On 9/18/2008, in Virginia, Federal Judge Henry Hudson ruled that an individual does not have a reasonable expectation of privacy in his own bathroom in his own home. See Opinion
Judge Hudson rejected the long established privacy expectation that society recognized for persons in their own bathroom behind locked doors. He dismissed claims alleging that officers without a warrant, probable cause or exigent circumstances forced their way into the locked bathroom of a disabled man in response to claims that he had earlier had a verbal dispute with his wife.
Virginia civil rights attorney for the disabled man, Thomas H. Roberts, complained that although the issue in the case was the distinction between a “common” or “shared” area and one occupied solely by the claimant, the court completely ignored these arguments clearing the officers.
Although no crime had been committed, Judge Hudson relied upon case law that finds it reasonable for an officer to temporarily detain individuals at the scene of lawful investigation when the detention is reasonably necessary to secure the officers’ safety. In this case the officers had been told before entering the premises that no domestic violence had occurred and had met the man’s wife at the door. There were no facts to support the Judge’s conclusion that it was reasonable let alone necessary to use force to open a bathroom door for the officers’ safety.
Roberts intends to appeal the ruling in hopes that Court of Appeals or the U.S. Supreme Court will wipe clean this opinion. The Supreme Court has stated, “The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Maryland v. Buie, 494 U.S. 325, 337 (U.S. 1990). In this case, there was neither an arrest, or even probable cause for an arrest and the record was devoid of specific and articulable facts that would provide the officer with such a reasonable belief.
"The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456 (U.S. 1948)(emphasis added)
Violation of individual rights, in particular the right to be left alone in the privacy of the home, is the wrong to be prevented by the warrant clause. "It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property." Boyd v. United States, 116 U.S. 616, 630, 29 L. Ed. 746, 6 S. Ct. 524 (1886). The Fourth Amendment is concerned with the individual's right to privacy, and the security of his property, and not with the reliability of evidence. Jones v. United States, 362 U.S. 257, 261, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960).
William Pitt speaking to Parliament in 1766 against the very evil condoned by Judge Henry Hudson, stated “The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement.”
As Justice Stewart wrote for the Supreme Court in Silverman v. United States, 365 U.S. 505, 5 L. Ed. 2d 734, 81 S. Ct. 679 (1961): The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick v. Carrington, 19 Howell's State Trials 1029, 1066; Boyd v. United States, 116 U.S. 616, 626-30, 29 L. Ed. 746, 6 S. Ct. 524 . . . . William Pitt's eloquent description of this right has been often quoted. The late Judge Jerome Frank made the point in more contemporary language: "A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty -- worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man's castle." United States v. On Lee, 193 F.2d 306, 315-16 (dissenting opinion). 365 U.S. at 511 & n.4.
Wilson v. Layne, 141 F.3d 111, 121-122 (4th Cir. Md. 1998)(Murnaghan dissenting), but see Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999),(granting qualified immunity to officers who executed search warrant for Wilson's son taking reporters into home with them.)
4th Amendment to the United States Constitution
Unreasonable searches and seizures.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Excerpts from Trull’s Brief rejected by Judge Hudson
It has long been established that absent probable cause and exigent circumstances or a warrant, to prevent a violation of the Fourth Amendment, to search a “common area” the officer must obtain consent by a person having mutual use of the property having joint access or control for most purposes. The courts reasoned that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the “common area” to be searched. United States v. Matlock, 415 U.S. 164, 171, n 7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)
The constant element in assessing Fourth Amendment reasonableness in the consent cases has been the great significance given to widely shared social expectations. And unlike the “common areas” there is probably no place with greater social expectation of privacy to the exclusion of all others than the present occupant, than the bathroom.
Defendants argue that prior to Georgia v. Randolph, 547 U.S. 103, 110 (U.S. 2006), “there would have been little question about the constitutionality of the Officers’ entry against Trull’s wishes, under the circumstances described in the Complaint.” DBr at 10. Plaintiff agrees. The courts and society recognized the distinction between “common areas” and private areas. Prior to Georgia v. Randolph the entry into the occupied bathroom under the circumstances of this case would be unconstitutional and a violation of the reasonable expectations of privacy by Trull or any other resident occupant of the bathroom.
(a) Bathroom privacy
“An occupant of a closed bathroom is entitled to an expectation of privacy far greater than those persons in the common areas of a house, such as the living room and kitchen.” Young v. Superior Court of Tulare County, 57 Cal. App. 3d 883, 887, 129 Cal. Rptr. 422 (Cal. App. 5th Dist. 1976)
Although unoccupied bathrooms are normally part of the jointly controlled premises, an occupied bathroom must be deemed to be under the temporary but exclusive dominion of the occupant. (See People v. Linke (1968) 265 Cal.App.2d 297, 316-317 [71 Cal.Rptr. 371], in which the court emphasized that the defendant had vacated the bathroom before the police entry.) An occupant of a closed bathroom, the same as an occupant of a closed bedroom, is entitled to an expectation of privacy far greater than those persons in the common areas of a house, such as the living room and kitchen. In Tompkins v. Superior Court, supra, 59 Cal.2d 65, 69, it is noted: "Joint occupancy of property, particularly residential property, obviously demands reasonable restrictions on the right of each joint occupant either by himself or through another to exercise full control over the property at all times regardless of the wishes of another joint occupant present on the premises. A joint occupant's right of privacy in his home is not completely at the mercy of another with whom he shares legal possession."
Young v. Superior Court of Tulare County, 57 Cal. App. 3d 883, 887 (Cal. App. 5th Dist. 1976), See also People v. Engel, 105 Cal. App. 3d 489, 501 (Cal. App. 2d Dist. 1980), People v. Gomez, 63 Cal. App. 3d 328, 334 (Cal. App. 5th Dist. 1976).
Society recognizes the expectation of privacy that an individual has for a single toilet bathroom. The court in United States v. Esparza, 162 F.3d 978, 980 (8th Cir. Minn. 1998) recognized that reasonable expectation of privacy in the single toilet bathroom., see United States v. White, 890 F.2d 1012, 1015 (8th Cir. 1989),
The test for legitimacy is whether a person's subjective expectation is "'justifiable' under the circumstances." United States v. Knotts, 460 U.S. 276, 281, 75 L. Ed. 2d 55, 103 S. Ct. 1081 (1983) (quoting Katz v. United States, 389 U.S. 347, 353 (U.S. 1967).
The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules. Cf. Rakas v. Illinois, 439 U.S. 128, 144, n. 12, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (an expectation of privacy is reasonable if it has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society"). Matlock accordingly not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other's interests.
Georgia v. Randolph, 547 U.S. 103, 111 (U.S. 2006)
The Supreme Court reiterated the sanctity of the home, a man’s castle.
Since we hold to the "centuries-old principle of respect for the privacy of the home," Wilson v. Layne, 526 U.S. 603, 610, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999), "it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people," Minnesota v. Carter, 525 U.S. 83, 99, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998) (Kennedy, J., concurring). We have, after all, lived our whole national history with an understanding of "the ancient adage that a man's house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown," Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) (internal quotation marks omitted). n4
Georgia v. Randolph, 547 U.S. 103, 115 (U.S. 2006). The court explained,
A generalized interest in expedient law enforcement cannot, without more, justify a warrantless search. See Mincey, 437 U.S. at 393, 98 S. Ct. 2408, 57 L. Ed. 2d 290 ("[T]he privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law"); Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) ("The warrant requirement . . . is not an inconvenience to be somehow 'weighed' against the claims of police efficiency").
Georgia v. Randolph, 547 U.S. 103, 116 fn 5 (U.S. 2006). The court stated
"the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers," United States v. Lefkowitz, 285 U.S. 452, 464, 52 S. Ct. 420, 76 L. Ed. 877 (1932).
Georgia v. Randolph, 547 U.S. 103, 117 (U.S. 2006)
The Fourth Amendment strongly protects a person's right to be free from government interference in his or her own home. United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996). Non-consensual physical entry into a person's home by government agents is the "chief evil" the Fourth Amendment seeks to prevent. Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980).
United States v. Bridges, 2008 U.S. Dist. LEXIS 47850 (N.D. W. Va. June 12, 2008)
(b) Permission to be in the common area by Picchi was not consent to enter the bathroom occupied by Trull.
The defendants state that the “allegations of the complaint demonstrate [the] officers were entitled to enter [the] bathroom over Trull’s objections,” DBr. at 9, arguing that the officers may lawfully enter the occupied bathroom in a home against the expressed objection of the occupant of the bathroom merely because a resident of the house has invited the officers into the house, DBr at 10, “to investigate her domestic disturbance complaint.” DBr at 9 and 10.
General principles recognized by society and Virginia common law make it clear that a person who exceeds the scope of the permission is a trespasser.
It is true, of course, that a person who lawfully enters onto another's property may subsequently exceed the scope of his authority by his wrongful conduct, thereby making him a trespasser. See McClannan v. Chaplain, 136 Va. 1, 116 S.E. 495 (1923).
Genito Glenn, L.P. v. National Hous. Bldg. Corp., 50 Va. Cir. 71, 88 (Va. Cir. Ct. 1999)
Viewing the facts in the light most favorable to Trull together with all reasonable inferences thereto, make it clear that any invitation provided by Picchi did not include the right to bust down the bathroom door or to enter the bathroom while Trull occupied it.
The law simply does not support the fiction asserted by defendants that consent to enter the common area of the residence was permission to enter the bathroom then solely occupied by Trull.
(c) Defendants do not find safe harbor for their conduct behind issues of “domestic violence.”
"Subjective factors involving the officer's motives, intent, or propensities are not relevant." Rowland v. Perry, 41 F.3d 167, 172 (4th Cir. 1994). The court looks at the officer's actions "in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
Other court rejected defendants’ argument that the specter of “domestic violence” removes the protections afforded by the Fourth Amendment.
Of course, this Court is cognizant of the need to protect victims of domestic violence. Riccobene v. Scales, 19 F. Supp. 2d 577, 581 (N.D.W.Va. 1998). Nevertheless, good intentions by police officers alone are insufficient to render a search constitutional. Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 71 L. Ed. 520 (1927). The intrusiveness of the right the government is claiming here cannot be overstated. To hold as a per se rule that the police have the power to search a private residence without consent whenever they receive an anonymous tip of a possible domestic violence episode would eviscerate the Fourth Amendment's protections of the sanctity of a person's home. This Court declines to hold that pretextual searches based on bare allegations of a connection to domestic violence are constitutional.
For the Fourth Amendment to mean anything, it must mean that the government may not enter a private home, absent consent, unless it has a warrant or exigent circumstances exist. Had someone been crying, or had the officers truly heard yelling, one might argue the presence of an exigent circumstance. See Brigham City v. Stuart, 547 U.S. 398, 406, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006); United States v. Gwinn, 219 F.3d 326, 329 (4th Cir. 2000). Had Bridges or his son been injured, perhaps one could claim an exigent circumstance. Brigham City, 547 U.S. at 403. Had the officers observed broken furniture, glass or blood on the floor in the living room, had there been a fire, or had the officers seen a weapon or drugs before they pushed the door open, the government could argue the presence of exigent circumstances. United States v. Dunn, 480 U.S. 294, 304, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987); Texas v. Brown, 460 U.S. 730, 739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); United States v. Roberts, 166 Fed. Appx. 80, 83 (4th Cir. 2006)(unpublished). None of these circumstances existed when Williams and Floyd entered and searched Bridges's residence, however. There was simply no evidence of domestic violence or some other exigent circumstance that justified their entry.
United States v. Bridges, 2008 U.S. Dist. LEXIS 47850, 25-26 (N.D. W. Va. June 12, 2008)
The defendants argue that they could search the home to prevent public danger. DBr. at 13. In so doing, the defendants must ignore the circumstances. Irrespective of Picchi’s call or statements to the officers, (which plaintiff may only obtain through discovery yet to be produced), before they forced open the bathroom door, they were able to see Picchi, and talk with Picchi who was not obstructed from leaving the house. There simply are no narrowly drawn exigent circumstances that warrant the officers entry into the bathroom.
Instead, at best the officers are faced with circumstances similar to United States v. Davis cited by the Georgia v. Randolph court---whatever the danger of domestic abuse may have been alleged, it certainly ceased when the husband ordered the wife out the door removing any exigent circumstances.
None of the cases cited by the dissent support its improbable view that recognizing limits on merely evidentiary searches would compromise the capacity to protect a fearful occupant. In the circumstances of those cases, there is no danger that the fearful occupant will be kept behind the closed door of the house simply because the abusive tenant refuses to consent to a search. See United States v. Donlin, 982 F.2d 31, 32 (CA1 1992) (victimized individual was already outside of her apartment when police arrived and, for all intents and purposes, within the protective custody of law enforcement officers); United States v. Hendrix, 194 U.S. App. D.C. 76, 595 F.2d 883, 885-886 (CADC 1979) (per curiam) (even if the consent of the threatened co-occupant did not justify a warrantless search, the police entry was nevertheless allowable on exigent-circumstances grounds); People v. Sanders, 904 P.2d 1311, 1313-1315 (Colo. 1995)(en banc) (victimized individual gave her consent-to-search away from her home and was not present at the time of the police visit; alternatively, exigent circumstances existed to satisfy the warrantless exception); Brandon v. State, 778 P.2d 221, 223-224 (Alaska App. 1989) (victimized individual consented away from her home and was not present at the time of the police visit); United States v. Davis, 290 F.3d 1239, 1241 (CA10 2002) (immediate harm extinguished after husband "order[ed]" wife out of the home).
Georgia v. Randolph, 547 U.S. 103, 119 (U.S. 2006)
**************Hudson was the Acting United States Marshals Service Director at the time of the time of the Ruby Ridge incident and subsequently represented the U.S. Attorney’s Office during the investigation at Ruby Ridge after the shooting on August 21, 1992. As a federal judge has earned a reputation as a no-nonsense judge with an even disposition.
************** The existence of probable cause is a common-sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed. Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)
************* Probable cause accompanied by exigent circumstances will excuse the absence of a warrant. Welsh v. Wisconsin, 466 U.S. 740, 749, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984) (citing Payton, 445 U.S. at 583-90). To determine the existence of an exigency, a court must consider the gravity of the offense supporting arrest. Id. at 753. When the underlying offense is extremely minor, a warrantless entry is rarely reasonable. Id. . Exceptions to the warrant requirement "have been jealously and carefully drawn." Jones v. United States, 357 U.S. 493, 499, 2 L. Ed. 2d 1514, 78 S. Ct. 1253 (1958) (citation omitted); Welsh, 466 U.S. at 749 (exceptions are "few in number and carefully delineated.") (citation omitted). When a government agent enters a home without a warrant, "the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh, 466 U.S. at 750 (citing Payton, 445 U.S. at 586). The determination whether exigent circumstances exist "ultimately depends on the unique facts of [the] controversy." United States v. Wicks, 995 F.2d 964, 970 (10th Cir. 1993) (internal quotations and citations omitted).
United States v. Davis, 290 F.3d 1239, 1242 (10th Cir. Kan. 2002)
****************“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483 (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Id. (emphasis added)
Consistent with our prior understanding that Fourth Amendment rights are not limited by the law of property, cf. Katz v. United States, 389 U.S. 347, 352-353, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), we explained that the third party's "common authority" is not synonymous with a technical property interest: "The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. " 415 U.S., at 171, n. 7, 94 S. Ct. 988, 39 L. Ed. 2d 242 (citations omitted).
Georgia v. Randolph, 547 U.S. 103, 110 (U.S. 2006)
**********************United States v. Harris, 255 F.3d 288, 295 (6th Cir. Tenn. 2001) refused to recognize a heightened expectation of privacy for a temporary visitor whose sole purpose of being on the premises was to engage in drug related business activities, stating “Although an overnight guest may possess a legitimate expectation of privacy in a residence being searched, a temporary visitor to a residence may claim no such protection. [Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 472, 142 L. Ed. 2d 373 (1998).]. This is particularly true where, as here, the person seeking the protections of the Fourth Amendment was on the premises for the sole purpose of engaging in drug-related business transactions. Id.” The Harris court under the circumstances of that case stated “Extending the "knock and announce" rule to any interior door that might have a bathroom behind it would far exceed the requirements of the Fourth Amendment and would substantially hinder law enforcement efforts.” Id.
****************************** However in that case the occupant failed to disclose his presence or objection to entry and therefore it was reasonable for the officers to believe that the landlord had authority to admit the officers.
************************ The bathroom in a residence is very different than a public bathroom stall. “A bathroom stall, such as at issue here, does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant's activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable. People v. Kalchik, 160 Mich. App. 40, 407 N.W.2d 627, 631 (1987).” United States v. White, 890 F.2d 1012, 1015 (8th Cir. Mo. 1989)
********************* Plaintiff objects and moves to exclude the impermissible assertion of facts by defendants not plead by plaintiff. The plaintiff does not plead that there was a “disturbance” and further does not plead that Picchi communicated to the police a claim of “domestic disturbance or violence.”